Wal-Mart v. Dukes Implications for Employment Discrimination Class Actions

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Wal-Bazaar v. Dukes Suggestions for Occupation Segregation Class Activities. Phyllis W. Cheng, Esq., Executive Division of Reasonable Job and Lodging Condition of California www.dfeh.ca.gov. Anna Segobia Aces, Esq., Accomplice Winston and Strawn LLP North America . Asia . Europe www.winston.com.

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Wal-Mart v. Dukes Implications for Employment Discrimination Class Actions Phyllis W. Cheng, Esq., Director Department of Fair Employment & Housing State of California www.dfeh.ca.gov Anna Segobia Masters, Esq., Partner Winston & Strawn LLP North America . Asia . Europe www.winston.com www.thomsonreuters.com June 29, 2011 © Copyright 2011. DFEH. All Rights Reserved. Winston & Strawn LLP © 2011. 2011 Thomson Reuters. All rights saved.

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Phyllis W. Cheng, Esq., Director Department of Fair Employment & Housing Phyllis.Cheng@dfeh.ca.gov Anna Segobia Masters, Esq., Partner Winston & Strawn LLP AMasters@winston.com Today's Webinar Presenters

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Outline of Presentation Overview of Wal-Mart v. Dukes . Legitimate Standard for and Types of Class Action in Federal Court. Prove Used to Establish Class. (FRCP Rule 23(a).) Backpay Considerations. (FRCP Rule 23(b).) Issues Decided: Majority, Concurrence & Dissents. Contemplations for Future Litigation. Life systems of a fruitful California class activity. Long haul Implications.

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Decision Summary In Wal-Mart v. Dukes , __ 564 U.S. __ (June 20, 2011, No. 10-277), created by Justice Scalia, the U.S. Preeminent Court put aside the class affirmation of the country's biggest class activity suit, since: Employees neglected to demonstrate a specific example of arrangement or routine of separation that meets the shared trait necessity for class activities. Manager was qualified for individual procedures on each backpay guarantee.

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Facts: Wal-Mart Largest private manager working four sorts of retail locations with 3,400 areas and utilizing more than 1 million laborers. Pay and advancement at tact of nearby supervisors. Subjective basic leadership by nearby supervisors.

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Facts: Class Members Three present and previous representatives. Spoken to 1.5 class individuals. Guaranteed sex segregation concerning pay and advancements disregarding Title VII.

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Plaintiffs' Allegations Did not affirm express corporate strategy against ladies. Affirmed neighborhood administrators' circumspection over pay and advancements favored men. Depended on recounted data and specialists' measurable examinations to gage corporate culture.

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Class Action Prerequisites Legal standard under FRCP Rule 23(a): Numerosity; Commonality; Typicality; and Adequacy.

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Types of Class Actions Legal standard under FRCP Rule 23(b): (b)(1) – Incompatible Standards/Unitary Decisions; (b)(2) – Injunctive Relief Class Actions; or (b)(3) – Damages Class Actions.

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Evidence Used to Establish Class Three types of confirmation: Statistical proof about pay and advancement inconsistencies amongst men and ladies at the organization; Anecdotal reports of segregation from around 120 of Wal-Mart's female representatives; and Testimony of a humanist, Dr. William Bielby, who directed a "social structure examination" of Wal-Mart's "way of life" and staff rehearses.

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Backpay under Rule 23(b)(2) Claims for fiscal alleviation may not be confirmed under Rule23(b)(2), at any rate where the financial help is not accidental to the asked for injunctive or definitive help. Claims for individualized help, as backpay, are rejected. Control 23(b)(2) applies just when a solitary, unbreakable cure would give alleviation to each class part. Wal-Mart is qualified for individualized conclusions of every representative's qualification for backpay.

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Adopting 9 th Circuit Dissents Judge Kozinski: Class had little in like manner "however their sex and this claim." Judge Ikuto: Information " about differences at the territorial and national level does not build up the presence of incongruities at individual stores, not to mention raise the surmising that a broad approach of segregation is executed by optional choices at the store and locale level."

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Concurring/Dissenting Opinion Concurrence and dispute by Justice Ginsburg: Agreed with larger part that the class ought not have been affirmed under Federal Rule of Civil Procedure 23(b)(2). Differ that offended parties delivered deficient shared characteristic to frame class under Rule 23(a)(2)

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Issues Decided All 9 judges concurred suit inappropriate for class activity in looking for backpay under Rule 23(b)(2). Dominant part of 5 judges held offended parties did not have enough shared characteristic to shape class because of absence of shared characteristic. Minority would have discovered adequate shared trait. Did not choose whether organization victimized female workers.

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Impact for Future Litigation Heightened concentrate on size and geographic extent of class. Uplifted concentrate on proportion of genuine proof introduced at accreditation arrange versus extent of claimed wrongdoing. Dukes had 1 statement for each 12,500 class individuals and identified with 235 of 3400 stores. Teamsters had 1 assertion for each 8 class individuals. Comprehend distinctive prerequisites and purposes under FRCP 23(b)(2) or 23(b)(3). In the event that individual harms looked for, can't depend on 23(b)(2). Court was threatening to idea of class individuals postponing individualized harms keeping in mind the end goal to bring 23(b)(2) assert.

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Impact for Future Litigation Heightened investigation of specialists. In segregation cases, the benefits should be produced to set up "the paste" that patches together the class issues. Littler and local class guarantees more inclined to survive Plaintiffs need to research wellsprings of shared trait right off the bat: Common Decision creators Common Policies Common Practices Other basic components bringing about divergent treatment or effect

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Litigation Considerations Be set up with a trial plan that will exhibit reasonability of the class. Concentrate on reasonability and due process issues. Assess whether mistaken outcomes could happen with test cases or disputing too huge a class with such a variety of characteristic individual issues, especially in (b)(2) cases.

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Anatomy of a Successful Class Action Dept. Reasonable Employ. & Hous. v. Verizon Services Corp. (L.A. Super. Ct., Case No. B444066), $6,011,190 on CFRA class activity settlement. Case Grading Method. Intensive examination by Special Investigations Unit of twelve dissensions and almost 100 potential petitioners more than two years. Guarantee case met components of Cal. Gov. Code area 12961 for class/assemble activity. Guarantee inquirers met Cal. Code Civ. Proc. area 382 components: Common or general enthusiasm; Of numerous people; and Substantial advantages to prosecutors and courts.

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Long-Term Implications Fewer class activities in government court; more class activities in state court. Less national class activities; more territorial or neighborhood class activities. Extensive businesses more secure; medium sized bosses more defenseless. Decentralized administration structures and decisionmaking more favored; incorporated administration structures less attractive. Effect of AT&T Mobility LLC v. Concepcion, __ 563 U. S. __ (Nov. 9, 2010, No. 09–893), permitting required discretion provisions on class activity.

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Contact Information Anna Segobia Masters, Esq., Partner Winston & Strawn AMasters@winston.com www.winston.com Phyllis W. Cheng, Esq., Director Department of Fair Employment & Housing Phyllis.Cheng@dfeh.ca.gov www.dfeh.ca.gov